Opinion
Court of Appeals No. A-9352.
February 28, 2007.
Appeal from the District Court, First Judicial District, Sitka, Bruce E. Horton, Magistrate, Trial Court No. 1SI-04-242 CI.
Michael J. Wenstrup, Law Office of Michael J. Wenstrup, and Robert John, Law Office of Robert John, Fairbanks, for the Appellant.Theresa Hillhouse, Municipal Attorney, Sitka, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Carl N. Church argues that the trial court erred in dismissing his application for post-conviction relief. When Church was being processed for driving while intoxicated (DWI) under the General Sitka Code, he repeatedly belched during the fifteen-minute observation period prior to the DataMaster test. The arresting officer eventually charged him with refusal to submit to a chemical test and stopped attempting to administer the DataMaster test. Although the refusal charge was ultimately dismissed, Church was still charged with and convicted of DWI.
SGC 11.48.010.
Church argues that his trial counsel was ineffective in failing to request a jury instruction that the DataMaster test would have been favorable to him, in failing to appeal his claim that AS 28.35.031(a) requires the police to give a DataMaster test to every DWI suspect, and in entering into a stay agreement that depended on the outcome of a similar but separate appeal. We affirm the dismissal of Church's application for post-conviction relief because he has not shown that his counsel was ineffective.
Facts and proceedings
On January 24, 2003, Sitka Police Officer David E. Johnson arrested Church for DWI. Officer Johnson attempted to conduct a DataMaster test, but Church belched during each of four or five fifteen-minute observation periods, so Officer Johnson determined that he was refusing to submit to a chemical test and stopped attempting to administer the test. The City charged Church with DWI and refusal to submit to a chemical test.
SGC 11.48.015. See also AS 28.35.032.
Before trial, the City dismissed the refusal charge based on the district court's decision in Sitka v. Powell. In that case, the district court held that 13 AAC 63.040 — which requires the police to observe the person to be tested for fifteen minutes to ensure that the person does not regurgitate or put anything into his or her mouth — does not extend to belches that do not bring up stomach contents.
No. 1SI-03-051 CR (Alaska Dist. Ct., July 16, 2003).
Church moved to dismiss the DWI charge because the police failed to give him a DataMaster test. The court denied the motion, holding that there is no statutory right to a DataMaster test and any error was addressed by the dismissal of the refusal charge. A jury found Church guilty of DWI.
SGC 11.48.010.
Church appealed the denial of his motion to dismiss to the superior court. The superior court found that Sitka satisfied its duty to preserve material evidence by offering Church an independent test and that it cured any error by dismissing the refusal charge.
Church entered into a stay agreement under which he could file an application for post-conviction relief if the appellant in Powell v. Sitka was successful in his appeal. However, we decided the Powell appeal on other grounds, addressing the right to a DataMaster test only in dicta.
Alaska App. Memorandum Opinion and Judgment No. 4916 (Aug. 25, 2004), 2004 WL 1886462.
Id. at 10-14, 2004 WL 1886462 at *5-*7.
Id. at 7-10, 2004 WL 1886462 at *3-*5.
Church then filed an application for post-conviction relief, arguing that his counsel was ineffective in failing to request a jury instruction under Snyder v. State, in failing to move for reconsideration from the superior court or appeal to the court of appeals, and in making his stay agreement dependent on the outcome of Powell. The district court denied the application because the court concluded that Church was not entitled to a jury instruction telling the jury to presume that if a breath test had been given, the results would have been favorable to Church, and because Church did not meet his burden of proving that counsel's decisions not to ask for reconsideration or appeal were incompetent tactical decisions, and because Church did not meet his burden of proving that the stay agreement was incompetently drafted. Church moved for reconsideration, but the district court denied the motion. Church appeals.
930 P.2d 1274, 1279 (Alaska 1996).
Discussion
When considering a claim of ineffective assistance of counsel, a court must determine whether counsel's decisions, "when viewed in the framework of trial pressures, [were] within the range of reasonable actions which might have been taken by an attorney skilled in the criminal law, regardless of the outcome of such decisions." The court must then determine whether there is a reasonable possibility that this lack of competency contributed to the eventual conviction. An applicant for post-conviction relief has the burden of proving the facts underlying the claim by clear and convincing evidence. This obligation includes the burden of rebutting the strong presumption that trial counsel's actions were motivated by "sound tactical considerations."
Fisher v. State, 523 P.2d 421, 424 (Alaska 1974).
Id. at 424-25.
AS 12.72.040; Alaska R. Crim. P. 35.1(g).
State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
Church first argues that his counsel was ineffective in failing to request a jury instruction telling the jury to presume that if a breath test had been given, the results would have been favorable to Church. In Snyder v. State, the Alaska Supreme Court held that the police must offer people arrested for driving while intoxicated an independent chemical test. As a remedy for a violation of this right, the trial court was directed to "presume that the independent blood test Snyder sought, if provided, would have been favorable to him." Church argues that his counsel should have asked for a similar jury instruction in this case because of Officer Johnson's failure to administer a DataMaster test.
Id. at 1277-79.
Id. at 1279.
However, in Powell v. Sitka, we held that, even if the police do not administer a breath test, they satisfy the right to due process by offering an independent test. Powell argued that the police violated their duty to gather and preserve exculpatory evidence by failing to administer a breath test to him. We held, however, "offer[ing] Powell a timely opportunity to obtain an independent chemical test . . . satisfied the government's duty under the due process clause." The police informed Church of his right to an independent test, and Church declined the test by signing the form indicating he did not want one. Thus, like the defendant in Powell, Church was not entitled to a favorable evidentiary presumption under Snyder.
Memorandum Opinion and Judgment No. 4916, 2004 WL 1886462.
Id. at 6, 2004 WL 1886462 at *3.
Id.
Id. (citing Snyder, 930 P.2d at 1277-79).
In Powell, we also "doubt[ed] that AS 28.35.031(a) was intended to require the police to administer a breath test to every motorist arrested for driving while intoxicated." However, we declined to definitively resolve the issue because the remedy would be an adverse evidentiary presumption, not dismissal, and it was therefore not a dispositive issue that could be appealed under Cooksey v. State.
Id. at 9, 2004 WL 1886462 at *5.
Id. at 9-10, 2004 WL 1886462; Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Although Powell was a memorandum opinion and we did not decide whether motorists charged with DWI have a statutory right to a breath test, our debate in Powell forecloses Church's ineffective assistance claim. In order to prevail on an ineffectiveness claim, Church must prove that no competent attorney would have failed to ask for such a jury instruction in his case. As noted above, this Court has expressed doubt whether such an instruction would be warranted. Failing to request a jury instruction that does not appear to be warranted is well "within the range of reasonable actions" of trial counsel. Moreover, Church has not ruled out the possibility that the decision not to ask for a jury instruction was motivated by "sound tactical considerations." Church's counsel stated that he could not recall whether there was a tactical reason for not requesting the jury instruction. However, as the City suggests, he may not have wanted to draw further attention to his client's uncooperative behavior. Regardless, we have held that when counsel cannot recall why he took or did not take a certain action, the applicant has not established that the action was not tactical.
Bryant v. State, 115 P.3d 1249, 1259 (Alaska App. 2005); Tucker v. State, 892 P.2d 832, 835 (Alaska App. 1995).
Powell, Memorandum Opinion and Judgment No. 4916 at 9, 2004 WL 1886462 at *5.
Risher, 523 P.2d at 424.
Jones, 759 P.2d at 569.
Parker v. State, 779 P.2d 1245, 1248 (Alaska App. 1989).
Church next argues that his counsel should have moved for reconsideration of or appealed the ruling that there is no statutory right to a DataMaster test. A defense attorney renders ineffective assistance by failing to file an appeal after being expressly instructed by the defendant to do so. Where the defendant does not clearly convey his wishes one way or another, an attorney renders ineffective assistance if the attorney unreasonably fails to consult the defendant about the possibility of an appeal and, but for counsel's failure, the defendant would have filed an appeal. However, Church's trial attorney stated in his affidavit that Church was highly aware of the facts in his case and that they "discuss[ed] at length the issue of Mr. Church's right to an appeal." They decided to rely on the appeal in Powell in part to avoid the cost of an appeal. Moreover, as noted above, our discussion in Powell indicates that the validity of Church's claim is at least an issue on which reasonable attorneys could differ. Declining to appeal a ruling on a novel issue of law after discussing the issue extensively with the client is within the range of reasonable actions of trial counsel.
Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029, 1035, 145 L. Ed. 2d 985 (2000).
Bryant, 115 P.3d at 1259.
Risher, 523 P.2d at 424.
Finally, Church argues that his counsel was ineffective in making the stay agreement dependent on the outcome of Powell instead of filing a direct appeal. However, Church has not shown that the drafting of the agreement was outside "the range of reasonable actions which might have been taken by an attorney skilled in the criminal law." As noted above, we have expressed doubt as to the basis for his claim. And he has not ruled out the strong possibility that the agreement was based on sound tactical considerations.
Id.
Powell, Memorandum Opinion and Judgment No. 4916 at 9, 2004 WL 1886462 at *5. See also Tucker v. State, 892 P.2d 832, 836 (Alaska App. 1995) (holding that Tucker failed to establish that he would have prevailed on the merits had he appealed).
Jones, 759 P.2d at 569.
Church included a fourth claim in his "issues presented for review" — his counsel's failure to object at trial when the prosecutor argued that his belching constituted evidence of guilt. However, in addition to not raising the issue below, Church only mentioned the claim in one paragraph of his brief and did not cite any legal authority. In his reply brief, Church argues that this claim is "part of and parcel to his argument that he should have received a favorable-presumption jury instruction." If so, it fails for the reasons outlined above. If not, it is waived for inadequate briefing.
Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991); Petersen v. Mut. Life Ins. Co. of N.Y., 803 P.2d 406, 411 n. 8 (Alaska 1990).
Church has not shown that the conduct of his trial counsel was outside "the range of reasonable actions which might have been taken by an attorney skilled in the criminal law." Accordingly, the trial court properly dismissed Church's application for post-conviction relief.
Risher, 523 P.2d at 424.
Conclusion
Church's conviction is AFFIRMED.